SCDSS v. Sarah W. ( 2011 )

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

South Carolina Department of Social Services, Respondent,

v.

Sarah W. and Vaughn S., Defendants,

Of whom Sarah W. is the Appellant.

In the interest of two minor children under the age of 18.

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Appeal From Saluda County
Richard W. Chewning, III, Family Court Judge

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Unpublished Opinion No. 2011-UP-514
Heard October 19, 2011 – Filed November 29, 2011   

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REVERSED

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Franklin G. Shuler, Jr., of Columbia, for Appellant.

Claude Robin Chandler, of Saluda, for Respondent.

Ralph Nichols Riley, Jr., of West Columbia, Guardian ad Litem. 

PER CURIAM: Sarah W. (Mother) appeals the family court's order terminating her parental rights to her two minor children.  Because the South Carolina Department of Social Services (DSS) failed to prove by clear and convincing evidence that the statutory ground for termination based on children being in foster care for fifteen of the most recent twenty-two months was satisfied and termination was in children's best interests, we reverse pursuant to Rule 220(b)(1), SCACR, and the following authorities:

1.  As to whether the family court erred in finding DSS proved by clear and convincing evidence that a statutory ground for terminating Mother's parental rights existed because children had been in foster care for fifteen of the most recent twenty-two months: S.C. Code Ann. § 63-7-2570 (2010 & Supp. 2010) (providing the family court may order termination of parental rights (TPR) upon finding one or more of eleven statutory grounds is satisfied and also finding TPR is in the best interest of the child); S.C. Code Ann. § 63-7-2570(8) (2010) (providing the family court may order TPR upon a finding that "[t]he child has been in foster care under the responsibility of the State for fifteen of the most recent twenty-two months"); S.C. Dep't of Soc. Servs. v. Mother ex rel. Minor Child, 375 S.C. 276, 282-83, 651 S.E.2d 622, 625 (Ct. App. 2007) ("Before terminating parental rights, the alleged grounds for termination must be proven by clear and convincing evidence.  On appeal, this [c]ourt may review the record and make its own determination of whether the termination grounds are supported by clear and convincing evidence." (citations omitted)); Charleston Cnty. Dep't of Soc. Servs. v. Marccuci, Op. No. 27049 (S.C. Sup. Ct. filed Oct. 3, 2011) (Shearouse Adv. Sh. No. 35 at 14) (holding the family court erred in relying on the fifteen of twenty-two months ground for TPR when "substantial evidence [existed] that this [child] languished unduly in foster care not because of any actions, or inactions, by [her parent], but because the delays generated and road blocks erected in the removal action made it impossible for the parties to regain legal custody of her prior to the expiration of the fifteen month period"); Loe v. Mother, Father, & Berkeley Cnty. Dep't of Soc. Servs., 382 S.C. 457, 471, 675 S.E.2d 807, 814 (Ct. App. 2009) (finding clear and convincing evidence did not establish the fifteen of twenty-two months ground for TPR was satisfied when the evidence indicated the delays in the processing of the case were attributable to DSS). 

2.  As to whether the family court erred in finding DSS met its burden of proving termination of Mother's parental rights was in children's best interests: Charleston Cnty. Dep't of Soc. Servs. v. Jackson, 368 S.C. 87, 96, 627 S.E.2d 765, 770 (Ct. App. 2006) ("[T]he child and his parents share a vital interest in preventing erroneous termination of their natural relationship until the State proves parental unfitness." (internal quotation marks omitted)); Loe, 382 S.C. at 471, 675 S.E.2d at 815 ("Even if the Foster Parents are perhaps better situated than Mother to offer advantages to [children], . . . the fundamental right of a fit parent to raise his or her child must be vigorously protected.").   

REVERSED.

FEW, C.J., THOMAS and KONDUROS, JJ., concur.